The NCAA made a statement Wednesday night about the claims related to the alleged use of student-athletes' names and likenesses in NCAA-themed video games. / Kim Klement, USA TODAY Sports

by Steve Berkowitz, USA TODAY Sports

by Steve Berkowitz, USA TODAY Sports

In what may be their final word before a ruling is issued in the Ed O'Bannon class-action antitrust lawsuit, attorneys for the NCAA put considerable effort into trying to shorten the legal analysis needed to decide the case in the association's favor.

They reiterated in a written closing statement filed Tuesday that there is no need for U.S. District Judge Claudia Wilken to consider whether the NCAA is justified in limiting what major-college football and men's basketball players can receive while playing their respective sports. They said the plaintiffs have not been able to define a bona fide market in which the NCAA's limits financially harm the athletes, and that consumers are not only unharmed by the limits, but they also benefit from them.

If Wilken accepts this line of reasoning, the NCAA is likely to win the case.

If she doesn't, the case will come down to her determination of whether the benefits that the NCAA and its Division I schools (and possibly sports fans) get from the association's compensation limits outweigh the economic harm that those limits do to Bowl Subdivision football and Division I men's basketball players.

Along the way, Wilken will have to determine whether the NCAA has legitimate justifications for its compensation limits and perhaps whether the association can accomplish its goals in a less restrictive way.

And while the NCAA contended in Tuesday's filing that it has legitimate justifications and the plaintiffs have been unable to show less restrictive alternatives that would let the association accomplish its goals, "the NCAA would be on really dangerous ground there - that's why (Tuesday's filing) was the argument it needed to make," said Michael A. Carrier, a Rutgers-Camden law school professor and antitrust expert who reviewed the filing. The NCAA "needed to say there is a fundamental showing that the plaintiffs were required to make but did not."

The NCAA's filing was the second in a series of three written closing arguments that Wilken requested from the sides when a 15-day trial concluded June 27. The plaintiffs, who filed an initial closing last week, have until Thursday to submit one more response. Barring further requests from Wilken, that will be the last piece of the 5-year-old case until she rules - probably in early August.

It is likely that the losing side will appeal. The NCAA specifically acknowledged appeal among the footnotes of its filing Tuesday. In one note, it said it continues to dispute one of Wilken's pre-trial rulings and "preserves this argument for appeal, if necessary." In another, it asks Wilken to "stay any injunction pending appeal, in the event (she) issues an injunction."

The plaintiffs - led by former UCLA basketball player O'Bannon - are seeking an injunction that would overhaul the NCAA's limits on what those football and men's basketball players can receive for playing sports and for the use of the names, images and likenesses in in live television broadcasts, rebroadcasts of games and video games. In a footnote of its filing Tuesday, the NCAA asked Wilken for "full briefing and argument" if she determines the plaintiffs "may be entitled to some form of injunction."

But first, and most basically, Wilken will have to determine if there are any bona fide markets in which the limits have an impact - and whether the impacts are harmful. The plaintiffs have offered two markets she must evaluate:

-One in which schools compete to recruit football or men's basketball players, or what has been called the college or higher-education market.

-Another involving the use of the athletes' names, images and likenesses in live television broadcasts, rebroadcasts of games and video games.

Last week, the plaintiffs contended that athletes and schools could both be seen buyers and sellers in these markets - the schools are sellers of educational services, but also could be viewed as buyers of the athletes' labor services. And in either case, the athletes end up as the harmed party because they can get no compensation for the use of their names, images and likenesses as part of the deal for their services.

The NCAA contends that is not how the plaintiffs presented their case and they "cannot pursue this claim for the first time after trial. That â?¦ should be the end of the case."

The NCAA argued Tuesday that the plaintiffs previously had defined education market as one in which the athletes buy educational services and athletic opportunities from schools, and the alleged restraint occurs in a different market - one in which the athletes are sellers of the name, image and likeness rights. The NCAA also argued that the plaintiffs presented no "quantifiable economic analysis" to back the contention they made last week that elite football and men's basketball players have no alternative but to follow high school by going to an FBS or Division I school, as opposed to playing football in Division II or some other collegiate organization or playing basketball in Europe.

In addition, the NCAA said that the fact that the athletes do not receive licensing revenues is "not caused by any anticompetitive conduct but is the result of the facts that (a) no athletes have ever been paid for the use of their (names, images and likenesses) in live broadcasts and (b) the NCAA and its colleges have decided not to license their own" trademarks and logos in markets that would involve the athletes' name, image and likeness rights such as video games, merchandise, or endorsements.

Regarding video games, the NCAA wrote that "the NCAA and its members â?¦ will not license" their logos and other marks "for use in video games that also use" athletes names and likenesses - and likewise for other merchandise that would include athletes' names and likenesses.

As it has throughout the case, the NCAA contended that the law does not recognize athletes' rights to sell their names, images and likenesses in live television broadcasts.

"Absent a market for (names, images and likenesses) for use in live broadcast, (the plaintiffs') claim disintegrates," the NCAA wrote in Tuesday's filing. "There can be no restraint on selling something that the law does not recognize - no possibility of defining a relevant antitrust market, no anticompetitive effect, and no injury caused by anything other than intellectual property law."

The plaintiffs have countered this position, in part, by showing that some college TV contracts specifically mention acquisition or use of names, images and likenesses. And, citing testimony from their TV expert, Edwin Desser, they noted that other contracts have "implied conveyance" of name and image rights shown by warranty and indemnification provisions.

But the NCAA counters that even if a market for athletes' name and image rights existed for live TV, the association's limits on athlete compensation have no consumer impact and "without harm to 'customers of sports,' there is no antitrust violation." Indeed, the NCAA argued, "the current rules increase output by, for example, ensuring that colleges either opposed to or lacking the resources to pay (athletes) can participate in Division I and FBS."

And that is one of the justifications the NCAA has offered for its limits.

The NCAA also has argued that its limits increase consumer choice and demand because college sports' amateurism keep them distinct from pro sports - a point it reiterated Tuesday by saying and citing from a previous legal case: "As such, the NCAA's amateurism rules expand consumer choice and promote interbrand competition, which 'is the primary concern of antitrust law.' "

In addition, the NCAA says the compensation limits maintain competitive balance among schools and further the integration of athletics and education.

While the NCAA pressed its case regarding athletics and education by citing improvements in football and men's basketball players' graduation rates, it also wrote that "what matters for antitrust analysis is not whether the NCAA and its member schools have achieved the ideal level of integration, but rather whether integration of academics and athletics is a legitimate objective of the NCAA and whether the alleged restraint is reasonably tailored to that objective."

If Wilken finds any of the NCAA's justifications are legitimate, she must consider whether the plaintiffs have shown such a goal can be achieved in a substantially less restrictive way. The NCAA on Tuesday again offered prior court rulings that say such alternatives also must be available "without significantly increased cost."